Wednesday, 27 May 2009

The Scottish Human Rights Law Group has launched and is still developing a website which contains a topical overview (including short summaries) of both ECHR cases and Scottish and other British cases concerning the ECHR. One can easily search the site through an index of ECHR provisions. A good resource and starting point for practitioners and for those interested in seeing how the ECHR is applied in national jurisdictions. Many thanks to Jonathan Mitchell, a Scottish lawyer, for pointing this out to me!

Tuesday, 26 May 2009

Dear readers, today this blog celebrates its first anniversary. After almost 150 posts and over 45,000 page views, I am very happy that so many academics and practitioners interested in the protection of human rights in Europe have found their way to this blog and more importantly, have been able to use the information in their work. Your support and enthusiasm has kept me going. I will try and carry the spirit of the first year into the future! Do not hesitate to contact me if you have any ECHR related news or academic work you come across.

Why do some international courts and judges extensively cite decisions from other courts whereas others do not? I argue that judges anticipate what external citations communicate to third parties. Depending on their institutional environments, judges expect more or less scrutiny for engaging sources of law other than the primary treaties that they are delegated to interpret. A global analysis of cross-citation patterns and an in-depth analysis of citations to and from the European Court of Human Rights (ECtHR) are consistent with the implications of this argument. Contrary to its transnationalist reputation, the ECtHR is cautious in citing other courts although ECtHR judges regularly refer to external decisions in separate opinions. The propensity of ECtHR judges to cite external sources is correlated with judicial ideology. The findings have implications for debates on transjudicial communication, the diffusion of international legal norms, the fragmentation of international law, and international judicial behavior.

The paper is written from a social sciences perspective and includes a 'Global Matrix of International Court Citation Patterns'. Enjoy reading!

Thursday, 14 May 2009

Mater semper certa est, is an old Roman-law principle. But what about the father? That was at stake in a recent Russian case in which the Court rendered judgment last week: Kalacheva v. Russia (Appl.no. 3451/05). In 2003, the applicant had given birth to "a child born out of wedlock" as the judgment so formally stated. The applicant started proceedings against a Mr A, with whom she had had a relationship, in order to establish that he was the father of the child and to be able to claim child maintenance. The domestic court ordered a DNA test to be carried out by a specialised state institution. The outcome was that it was 99.9 per cent certain that A was the father. Nevertheless, the domestic court rejected Ms Kalacheva's claims, because the evidence had been obtained in breach of relevant procedures: instructions had not been properly folowed and as a result it was unclear whether the blood on which the DNA test was performed was indeed Mr A's. All subsequent claims by the applicant asking for a re-assessment of the evidence were rejected at the national level.

The Court assessed the case under Article 8 ECHR (right to respect for private life). The Court held that the situation indeed fell within the scope of that provision, since (para. 29):

Establishment of paternity of the applicant’s daughter is a matter related to the “private life” of the applicant, who bears full responsibility for her minor child. Recognition of the natural father, apart from its financial and emotional purposes, may also be important from the point of view of the applicant’s social image, her family medical history and the web of entwined rights and duties between the biological mother, biological father and the child concerned.

After this broad and nicely worded assessment, the Court indicated the importance of the DNA test as a piece of evidence in this case (para. 34):

The Court does not lose sight of the fact that today a DNA test is the only scientific method of determining accurately the paternity of the child in question; and its probative value substantially outweighs any other evidence presented by the parties to prove or disprove the fact of an intimate relationship. Furthermore, the applicant suggested that she and the defendant had concealed their relationship; hence the genetic examination could have been the only persuasive evidence of the disputed paternity.

Finally, the Court noted that a clear answer on the issue of paternity was also in the best interests of the child. By both declaring the first DNA test inadmissible and not ordering a second one. the domestic authorities had failed to strike a fair balance between the competing interests of the parties (note that no broader societal interest was at stake here), "with due regard to the best interests of the child".

Monday, 11 May 2009

Political campaigns are almost never the highlight of civility and politeness, in any country. A recent case of the Court, Karakó v. Hungary (Appl.no. 39311/05), concerns the accusation of libel by one politician against another during an electoral campaign. Please find below a summary and some comments on the case by Darian Pavli of the Justice Initiative, who has been so kind to allow me to post it on here:

KARAKÓ v. HUNGARY

The following is a summary of the Karako judgment, which involves an Article 8 complaint by an Hungarian politician following the refusal of the Hungarian courts to allow the criminal prosecution of a critic for supposed libel against the applicant related to critical remarks made during an election campaign:

1. The judgment starts with the premise that there is no real conflict between article 8 and article 10 insofar as article 10.2 protects the rights of others, which would include rights recognized under “private life”; 2. However, there is no independent and general right to reputation under article 8: a “prudent approach” is required to finding positive state obligations to protect “private life in general” – any such measures should be consistent with article 10; 3. Cases involving reputation/defamation should be resolved under the framework of article 10 -- irrespective of which provision is invoked or the nature of complaint – since article 10 is the natural conceptual setting “specifically designed by the drafters” for solving such conflicts; 4. Article 8 protects both the personal identity (image etc) and personal integrity (self-esteem, development of personality and the like). These only extend to reputation, however, when the attack on reputation is so severe as to affect one’s personal integrity: that is when (a) the factual allegations (b) were of such a seriously offensive nature that (c) their publication had an inevitable direct effect (d) on one’s private life (reference to Petrina v. Romania, which had to do with allegations of secret service collaboration, a sore point in a post-Communist society) – by implication, value judgments should not trigger article 8 protection in principle; 5. Crucially: article 8 does not extend to harm to reputation that - as is usually the case - primarily affects one’s public standing (‘the external evaluation of the individual’), rather than self-esteem – according to the Court, this is a common distinction in European law (DP: usually known as the difference between insult and defamation), and article 8 was designed to protect personal integrity, not one’s social standing; 6. The judgment, rather explicitly, departed from the Pfeiffer v. Austria line of cases by noting that “reputation has only been deemed to be an independent right sporadically” – the lone dissenter in the case disputed this by arguing, in effect, that Pfeiffer etc was already settled law; 7. The expression at issue in the case was protected value judgment – had Hungary gone ahead with its criminal prosecution, it would have violated article 10 of the Convention.

Some of us believe that this ruling, if endorsed by other sections of the Court, would go a long way toward addressing the concerns of the free expression community regarding the proper balance between article 8 v. article 10 interests in the defamation context. The challenge will be for other sections of the Court, and eventually the Grand Chamber, to steer closer to the path of Karako, rather than Pfeiffer/Petrina. At the moment, I think it is fair to say there is diverging jurisprudence among the various sections on this question (or central parts thereof), and Karakó offers hope for a re-orientation that takes proper account of the implications for free expression.

Interestingly, Karakó is also one of two article 10 judgments issued in April that is classified by the Court’s own database as Importance 1 (“High importance, Judgments which the Court considers make a significant contribution to the development, clarification or modification of its case-law, either generally or in relation to a particular State”). The other one, another landmark case from Hungary, was Társaság (appl. no. 37374/05) on the right of access to state-held information and records.

Wednesday, 6 May 2009

The newest issue of the European Human Rights Law Review contains several ECHR-related articles. The first is authored by Paul Mahoney and entitled 'A European Judicial Training Institute on Human Rights'. His plea for a new training instiute for jduges attached to the European Court is all the more noteworthy, since Mahoney was the registrar of the Court for a great number of years - a (former) insider's view on the need for it. Here is the abstract:

This article argues in favour of the institutionalisation of judicial training relating to the European Convention on Human Rights 1950 through the establishment of a European Judicial Training Institute on Human Rights attached to the European Court of Human Rights. Examines the reasoning behind the need for judicial training on the Convention and assesses whether such training should be dispensed at national or European level. Discusses the potential status, structure, and organisation of a Judicial Training Institute on Human Rights.

Secondly, an article by Marton Varju on 'Transition as a Concept of European Human Rights Law'. This is the abstract:

This article discusses, with reference to case law, the transition of the Central and Eastern European accession states, focusing on how the European Court of Human Rights has been able to accommodate the fact that many Contracting States required a complete transformation of their legal and political systems. Examines the distinction between rights under the European Convention on Human Rights 1950 that allow a margin of appreciation and those that prohibit such moves, including political rights, proprietary rights, and the application of arts 3, 6, 7, and 8 of the Convention.

Finally, Matthew Smith has written on 'The Adjudicatory Fact-finding Tools of the European Court of Human Rights':

This article discusses the adjudicative fact-finding techniques employed by the European Court of Human Rights. Examines: (1) the relevant jurisdictional framework, commenting on the reasonable deference to national findings of fact and the lack of strict rules of evidence; (2) the burden and standard of proof in proceedings under the European Convention on Human Rights 1950; (3) inferences and presumptions of fact as adjudicatory tools for fact-finding; (4) limits on the use of inferences and presumptions of fact in human rights adjudication; and (5) the implications of the findings of procedural violation of the Convention.

Monday, 4 May 2009

With Protocol 14 on the reform of the ECHR mechanism still stuck in the Russian Duma, the Council of Europe has launched a new initiative to prevent the European Court from succumbing (or getting crushed) under the increasing case-load. The Committee of Ministers has drafted and is still discussing a so-called Protocol 14-Bis, which is to function as an interim solution and will become obsolete if and when Protocol 14 will ever come into force.

The proposed Protocol 14-Bis in effect takes two crucial elements from the broader reform package of Protocol 14 proper, and seeks to give these a more immediate effect. The two elements are the possibility for a single judge (instead of currently a committee of three) to declare plainly inadmissible cases inadmissible. Secondly, Committees of three judges would be allowed to issue judgments (now only 7-judge Sections of the Court are allowed to do so). Obviously, this would spare time and allow the Sections to dedicate more time to the more important cases. The essential difference with Protocol 14 is, that Protocol 14-Bis would enter into force almost immediately for each state that ratifies it (and thus apply to cases against that state). Thus, it would no longer be possible for a state to block the entry into force for the other state parties.

The Parliamentary Assembly reacted positively to the proposal, basing itself on a report on the issue by one of its members, the Dutch senator Klaas de Vries. De Vries estimated that the introduction of the proposed measures would result in an increase of 20 to 25 % in the capacity of the Court to process cases. He labels the current a situation as a "force majeure' for which Protocol 14-Bis could offer a solution in the short run (and avoid the Court becoming as crushed as the tomatoes in the can).

Importantly, Spain, the current Chair of the Committee of Ministers, is seeking to take the issue forward at the next ministerial meeting in Madrid. It is at that meeting that a parallel solution is also envisaged - declarations from state parties that the Court could apply vis-à-vis them parts of the pending Protocol 14. Another way of circumventing the current deadlock. For the press release of the Parliamentary Assembly, click here.

The "Bis"-solution seems to be a justified, although not entirely unproblematic way to address at least part of the case-load problem. The downside of taking this path, is that the pressure on Russia to ratify Protocol 14 itself may decrease. But in the current situation, that is a risk worth taking, in my opinion.